On Thursday 3 November CAAF will hear oral argument in United States v. Fry, No. 11-0396/MC. The issue presented is:

I. Appellant purportedly enlisted in the Marine Corps after a judicial determination of his incapacity to contract, which remains in effect. Was his enlistment void ab initio?

The appellant was convicted, pursuant to his pleas in accordance with a pre-trial agreement,of fraudulent enlistment, unauthorized absence, and possessing child pornography in violation of Articles 83, 86, and 134, UCMJ. He was sentenced to confinement for four years, total forfeitures, and a bad-conduct discharge. The N-MCCA affirmed the findings and sentence in an unpublished opinion, ruling that:

Congress did not cede determination of the validity of an enlistment contract to a state court’s conclusion as to “capacity” to contract, but rather retained the authority to set its own definition of “capacity” to enlist. We are not persuaded by the argument that a state has the legal authority to limit the right of a citizen to enlist in the armed forces by the creation of a limited conservatorship. United States v. Fry, No. 201000179 (N-M Ct. Crim. App., 27 Jan 2011) at page 5.

We cannot conclude, therefore, that the appellant was legally insane at any pertinent time which would serve to deny this court-martial of jurisdiction. He further satisfied every other requirement set forth in Article 2(b) & (c), UCMJ and therefore had, as a matter of law, the capacity to enter into an enlistment contract. Id. at 7.

The appellant’s brief sets forth a sad history of appellant’s upbringing, many run-ins with law enforcement and social services agencies, and the eventual appointment of a limited conservatorship. This history forms the basis for the appellant’s incapacity to contract and therefore incapacity to enlist. The brief challenges the N-MCCA’s finding that the appellant retained the right to enter into contracts under the conservatorship as an inaccurate interpretation of California law, and cites federal firearms prosecutions for the principle that federal courts should look to state law determinations of capacity.

The government’s brief restates the position that the appellant retained the capacity to contract under state law, but also argues that a state cannot bind the federal government’s authority to enlist under the provisions of Article 2, UCMJ. The government then parses the Article 2 standard (summarized as: enlist voluntarily and have the capacity to understand the significance of the enlistment) to support the position that the appellant had the capacity to enlist, or that his conduct resulted in a constructive enlistment.

In the reply brief, the appellant attacks the government’s position through analysis and interpretation of 10 U.S.C. § 504 and 505, which list disqualifications from enlistment.

Case links:
N-MCCA Opinion
Appellant’s brief
Appellee’s (government) brief
Appellant’s reply brief

16 Responses to “Argument Preview: United States v. Fry, No. 11-0396/MC”

  1. Weirick says:

    His criminal background check revealed that he was charged with “carrying a dirk.” What is criminal about lugging around the 7x European Player of the Year, current member of the Dallas Maverick, and an all-around-good guy? Gun to your head, which CAAFlog reader could obtain a dirk within 24 hours?

  2. Cheap Seats says:

    One can download a dirk at any moment from iTunes/App Store. Those of us who lived in the 80’s remember the groundbreaking video game Dragon’s Lair and its hero Dirk the Daring. Got it on my iPhone right now.

  3. BWMacKenzie says:

    Quips aside…a dirk is a scottish knife, somewhere around 12″ or shorter normally part of a traditional kilt ensemble. On the other hand it may have been a sgian dubh which is a much smaller blade worn in a kilt wearer’s sock. Yet again, it may have been a naval dirk…most popular during the golden age of sail for officers and midshipmen…small blade for boarding parties…argh. If I am not mistaken, one may still purchase, albeit a ceremonial one, at the Midshipman store in Annapolis or probably on line. Now which of our fine members of the thin blue line knew this when Mr. Fry was supposedly arrested is yet another mystery.

  4. stewie says:

    If it’s not Scottish, it’s CRAP!

  5. Cloudesley Shovell says:

    “[T]he right of a citizen to enlist in the armed forces.” Since when? Is it a fundamental right? What’s the standard of review for violations of that right?

  6. Peanut Gallery says:

    Actually, a skean dhu (Anglicanization of “sgian dubh”) is traditionally a bit smaller than a dirk. The skean dhu is approximately 4 inches long and, according to legend, was just long enough so that, when plunged into the enemy’s sternum, it would pierce the heart.

  7. soonergrunt says:

    Only one guy addresses the actual case, and everybody else in the thread is off on various tangents about knives and basketball players.
    LOL.
    Dirk Nowitzki–no, too large to secrete on his person. Great power forward, though.
    Dirk Pitt-this guy doesn’t seem the literary type, even action/adventures
    Dirk Benedict–No. The new Starbuck (Katie Sackhoff) is much hotter and more portable anyway. She’d kick his ass, though. Hell, she’d probably kick MY ass, come to that.
    Dirk Diggler–No. Just no.
    Dirk Bogarde–played British Lt. Gen Frederick “Boy” Browning in the great movie “A Bridge Too Far”–nor that either.
    Dirk Gently–see entry for Pitt, Dirk. Substitute “Farce” for “action/adventure”.
    Ah, here we are:
    Dirk–short thrusting dagger; sometimes a cut-down sword blade mounted on a dagger hilt, rather than a knife blade. That makes eminently more sense, although I’d have given a month’s retirement to see this guy trying to drag Dirk Bogarde around.

  8. stewie says:

    I would hope that no one would ever secrete a knife! That just sounds really painful! vbg

  9. Peanut Gallery says:

    I would hope that no one would ever secrete a knife! That just sounds really painful! vbg

    Would much rather secrete a knife than a Dirk Nowitzki.

  10. stewie says:

    I wonder if his first name is Phillip.

  11. soonergrunt says:

    After all the work I go to, the only thing anybody comments on is the inadvertent spelling/grammar error. I’m not surprised given how the thread started, I suppose.

  12. stewie says:

    Hey once you get into your head the image of a grown man secreting out a knife, you can’t see anything else!

  13. Dew_Process says:

    The tragedy of this case is that there’s an autistic kid, locked up in a Brig, who was and remains “incompetent to contract” per a Judicial Order! If you haven’t read the Statement of Facts in Appellant’s Brief [nicely done by Brian Mizer], take the time to read it.

  14. soonergrunt says:

    Leaving aside that a judge declared him incompetent to contract, and the Government’s claim that a state judge cannot bar the Federal Government from enlisting somebody, why was this ever sent to Court Martial? I mean the fact that he is ASD (although apparently neurotypical enough to join the Marines and make it through boot) should have been reason enough to deal with this Marine administratively with a reduction and admin separation. Is justice really being served by keeping him in confinement?

  15. stewie says:

    four years for effectively possession of child porn is a pretty stiff sentence, at least by Army standards…I don’t recall ever seeing a sentence that high for child porn (and the other two charges couldn’t have earned him a day in jail). I dont think you will often administratively discharge someone for possessing child porn, but can agree one wonders why the sentence given was so stiff and why no clemency to something a little more reasonable.

    As far as incompetence to contract, that was state level and while instructive (and perhaps even something a responsible recruiter should find dispositive), I agree you can’t bind the Feds with a state court determination.

  16. Ron Lewis says:

    For a valid enlistment contract to be viable, several prerequisites are a must
    because one’s status changes from Civilian to Military; and if a “Recruiter”
    deviates from them and misleads a perspective recruit, then there was no valid
    contract because the status was never lawfully effectuated, thus there was no
    personal [jurisdiction] over the accused! Recruiters during Vietnam were notorious
    for various shenanigans just to fill their [quotas]!